- (1.) This Criminal Appeal has been directed against the judgment of conviction and order of sentence dated 21st July, 2006 passed by Additional Sessions Judge, Simdega in connection with Sessions Trial Case No. 115 of 2004 corresponding to G.R. Case No. 276 of 2004 arising out of Simdega P.S. Case No. 100 of 2004, whereby the appellant has been held guilty for the offence punishable under Ss. 302, Indian Penal Code and sentenced to undergo rigorous imprisonment for life. The prosecution case as it appears from the fardbeyan of Shanti Bilung, recorded on 5.9.2004 at 15:30 hrs., is that on 4.9.2004 informant with her husband Xavier Bilung was chatting by sitting in the house. In the mean time, Edmon Bilung younger brother of the deceased armed with a stick reached to the place and started abusing. The informant with her husband went to make a complaint to her father -in -law whose house was situated at the distance of 100 yards. While the informant with her husband was returning home, appellant Edmon Bilung appeared and assaulted his elder brother Xaviour Bilung causing injury on his head and hand and fled away. Xavier Bilung was brought home but, could not survive and died within two hrs. On the basis of fardbeyan of Smt. Shanti Bilung, Simdega P.S. Case No. 100 of 2004 dated 5.9.2004 u/s. 302, IPC against the appellant was registered. The police after due investigation submitted charge sheet and, accordingly, cognizance was taken and case was committed to the court of Session and registered as Sessions Trial No. 115 of 2004.
(2.) The charge under Sec. 302, Indian Penal Code was framed against the appellant to which he pleaded not guilty and claimed to be tried. To substantiate the charge the prosecution has examined altogether eleven witnesses and proved inquest report, seizure list, fardbeyan, Post -Mortem report etc. The learned Additional Sessions Judge, Simdega placing reliance on the evidence and documents available on record, held the appellant guilty for the offence punishable u/s. 302, IPC and sentenced him as indicated above.
(3.) Learned counsel for the appellant has submitted that except PW -1 Shanti Bilung there is no eye witness to the occurrence and PW -1 happens to be the wife of deceased. PW -4, PW -6, PW -7 and PW -11 have not supported the prosecution case and they have turned hostile. PW -2 and PW -3 are the witnesses to the inquest and they have proved their signatures appearing on the inquest report. PW -5 is a hearsay witness whereas PW -9 happens to be a witness to the seizure of stick. Dr. Anil Kumar PW -8 had conducted postmortem examination on the dead body of Xavier Bilung and he has found following injuries: 1. Lacerated wound over the head on parietal region Size 3" x 1/2" x 1" 2. Lacerated wound in lateral aspect above the left elbow joint size 1" x 1/4" x 1". Learned counsel has submitted that learned Additional Sessions Judge has erred in convicting the appellant u/s. 302, IPC. The appellant is the younger brother of deceased. On the date of occurrence at about 8 p.m. the appellant reached to the place and started abusing. Thereafter, the deceased with his wife went to make complaint to his father who was residing at a distance of 100 yards. According to evidence of PW -1 while deceased and his wife were returning, the deceased was assaulted by the appellant by means of danda on his head. The entire evidence adduced by the prosecution if admitted to be correct, the appellant was not having intention to commit murder. He was not armed with any lethal weapon. He did not cause assault to the deceased when he first met with him. The annoyance caused to the appellant when complaint was made to his father. The father and mother of the appellant PW -4 and PW -5 respectively did not support the case of prosecution. Even assuming it to be correct, the appellant had caused assault by means of danda to his elder brother on his head that will not constitute offence punishable u/s. 302, IPC. Learned counsel for the appellant has further referred postmortem report and the evidence of doctor PW -8. The injury caused to the deceased on his head was not with great force and that is apparent from the fact that no fracture was caused only clotted blood was found. Some laceration has caused to the brain. On the basis of evidence the appellant could have been held guilty for the offence punishable u/s. 304 (Part II) of the IPC. To strengthen the submission, learned counsel has placed reliance on the judgment reported in (2003) 3 JLJR 777. He has submitted that the facts of the case at hand mostly tallies with the facts of the case referred to above. The appellant has also remained in custody for about twelve years.;